B. SIRISENA COORAY v. TISSA DIAS BANDARANAYAKE AND TWO OTHERS

001-SLLR-SLLR-1999-V-1-B.-SIRISENA-COORAY-v.-TISSA-DIAS-BANDARANAYAKE-AND-TWO-OTHERS.pdf


SC B. Sirisena Cooray v. Tlssa Dias Bandaranayake and Two Others 1
SIRISENA COORAY
v.TISSA DIAS BANDARANAYAKE AND TWO OTHERS
SUPREME COURTDHEERARATNE, J..
GUNAWARDANA. J. ANDWEERASEKERA, J.
S.C. SPECIAL (WRIT) NO. 1/98NOVEMBER 18, AND 19, 1998.
DECEMBER 18, 1998JANUARY 8, 21, 1999
Writ of Certiorari – Report of a Commission of Inquiry under the SpecialPresidential Commission of Inquiry Law – Liability for contempt of the Commission
Scope of. the writ jurisdiction of the Supreme Court – Amenability of theCommission's report to judicial review – Special Presidential Commissions ofInquiry Law, No. 7 of 1978, sections 2, 7, 9, 11, 12, 16 and 18A of the Law
Articles 13 (3), 81, 89, 91 and 140 of the Constitution – Section 22 of theInterpretation Ordinance.
The President issued a warrant under the Special Presidential Commissions ofInquiry Law, No. 7 of 1978 as amended appointing the 1st respondent and twoothers as Commissioners to inquire into and report on matters specified in thewarrant relating to the assassination of late Lalith William Athulathmudali. Theother two Commissioners resigned and the 2nd respondent was appointed asa Commissioner. On 12. 07. 1996 acting in terms of section 16 of the Law, theCommission informed the petitioner that it was of the opinion that he was a personwhose conduct should be subject to inquiry and that he was entitled to legalrepresentation. He was not informed of the date of the inquiry. At the time ofthat notice the petitioner had left for the USA. On 02. 08.1996 when the petitionerwas still out of the Island, the Secretary to the Commission by its order, wroteletter P3 to the petitioner requesting him to attend the office of the Commission .on 9th August to record his statement. The petitioner's son replied P3 statingthat it was received on 7th August and that it would be given to the petitioneron his return. On 19. 12. 1996 the Commission caused a notice P5 to be affixedon the front door of the petitioner's residence. P5 referred to the two previousnotices issued by the Commission, alleged that despite such notices the petitionerwas travelling in different foreign countries and was since "moving from placeto place in India", stated that the evidence before the Commission disclosed hiscomplicity in the murder of late Lalith Athulathmudali and commanded him to
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appear in person on 09. 01. 1997 before the Commission. On 03. 01. 1997 thepetitioner's attomey-at-law addressed a letter to the Secretary of the Commissionseeking another date as the petitioner's counsel was not free on 09th January.On 09. 01. 1997 junior counsel for the petitioner appeared before the Commissionand moved for a date on behalf of the senior counsel. But this was refused onthe ground that lawyers had no status as the petitioner had failed to appear onsummons. On the same day the Commission issued a warrant for the arrest ofthe petitioner. On 18. 01. 1997 the Commission purported to make a determinationthat the petitioner was guilty of the offence of contempt under section 12 (1) ofthe SPCI Law and disqualified from being elected to Parliament for 7 years interms of Articles 89 and 91 of the Constitution.
Alternatively, the Commission determined that on the basis of the "evidence" beforeit, the petitioner was "responsible" for the assassination of Mr. Athulathmudali anddirectly concerned as a member of the conspiracy to assassinate him whichamounted to political victimization, and that he also procured police officers toassist which amounted to corruption. The Commission recommended that thepetitioner be subjected to civic disability.
At the hearing of the application the counsel for the 1st and 2nd respondentsinteralia raised certain legal objections, namely –
that the petitioner's application should be rejected on the ground of delay;
that the writ jurdisction of the Supreme Court has been ousted by preclusiveclauses contained in the SPCI Law and the Interpretation Ordinance;
that the report of the Commission was not amenable to judicial review.Held:
There was no delay in making the application in that the petitioner madeit so soon as he became aware of the finding against him from the reportof the Commission after its publication as a sessional paper.
The writ jurisdiction of the Superior Courts is conferred by Article 140 ofthe Constitution. It cannot be restricted by the provisions of ordinarylegislation contained in the ouster clauses enacted in sections 9 (2) and18A of the SPCI Law or section 22 of the Interpretation Ordinance. Infact the first proviso to section 18A (2) specifically confers writ jurisdictionon the Supreme Court. That jurisdiction is unfettered.
The recommendation or the decision of the Special PresidentialCommission has the effect of potentially jeopardising the rights of persons.As such the Commissioner's report is amenable to judicial review. Section
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others 3
18A (2) of the SPCI Law itself contemplates the exercise of judical reviewby the Superior Courts over Commissions appointed under the Law.
Per Dheeraratne, J.
"In a democracy the Commissions cannot be permitted to be a law untothemselves and operate outside the ambit of the Rule of Law. As observedby G. P. S. de Silva, CJ, in Premachandra v. Major Montague JayawickremeF*at 102 “ . . . our Constitution and the system of Government are foundedon the Rule of Law; and to prevent the erosion of that foundation is the primaryfunction of an independent judiciary".
The summons issued by the Commission (P5) was flawed as it was notin conformity with sections 7 (1) (c) and 11 (3) of the SPCI Law; Norwas it a notice under section 16. Hence the warrant too was flawed; andthe Commission has no power to "convict" any person of any offence. Thatpower is vested in the Supreme Court – section 10 (1) of the Law.
The determinations and recommendations of the Commission are flawedfirstly as being unreasonable in that the Commissioners did not call theirown attention to the relevant matters; secondly as they are not based onevidence of any probative value; and thirdly because those determinationsand recommendations have been reached without giving the petitioner aright of hearing in breach of the principles of natural justice.
Per Dheeraratne, J.
"The legislature has (in providing for appointment of Judges to the Com-mission) in all probability given its mind to the fact that a Judge will bringto bear in functioning as a Commissioner, his legal training and judicialexperience and the combination of those attributes will make him not onlyto act, in the words of Burke, with 'cold neutrality of an impractical judge'but also act fairly”.
Cases referred to;
Bandaranaike v. Weeraratne and two others (1978-1979) 2 Sri LR 412.
Weeraratne v. Hon. Percy Colin-Thome' and Three Others (1988)
2 Sri LR 151.
Wickramabandu v. Herath and Others (1990) 2 Sri LR 348.
Visuvatingam and Others v. Liyanage and Others (1984) 2 Sri LR 123.
Hopman and Others v. Minister of Lands and Land Development and Others(1994) 2 Sri LR 240 at 247.
Atapattu and Others v. People's Bank (1997) 1 Sri LR 208.
Goonesinha v. De Kretser (1944) 46 NLR 107.
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[1999] 1 Sri LR.
K. Nakkuda Ali v. Jayaratne (1950) 51 NLR 457.
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation(1947) 2 ALL ER 680.
CCSU v. Minister for the Civil Service (1984) 3 ALL ER 935 at 951.
The King v. Electricity Commissioners, Ex parte London Electricity JointCommittee Company (1920) Ltd. and Others (1924) 1 KB 171 at 205.
De Mel v. De Silva (1949) 51 NLR 105.
Dias v. Abeywardene (1966) 68 NLR 409.
Fernando v. Jayaratne (1974) 78 NLR 123.
(a)Ratnagopal v. The Attorney-General (1969) 72 NLR 145.
(fa)Ratnagopal v. The Attorney-General (1968) 70 NLR 409.
Silva and Others v. Sadique and Others (1978-79-80) 1 SriLR166(5JJ).
Mendis, Fowzie and Others v. Goonewardena and Silva (1978-1979)2 Sri LR 322.
Selvarajan v. Race Relations Board (1976) 1 ALL ER 12.
Secretary of State for Home Department ex parte Hosenball (1977) 3 ALLER 452 (1977) 1 WLR 766.
Breen v. Amalgamated Engineering Union and Others (1971 2 QB 175).
CHVT Ltd. v. Price Commission 1976 ICR 170 at 179.
Chief Constable of North Wales Police v. Evans – 19821WLR1155.
Daganayasi v. Minister of Immigration 1980 2 NZLR 130.
R. v. Secretary of Trade, ex parte Perestrello 1981 QB 19.
Mclnnes v. Onslow-Fane 1978 1 WLR 1520.
R. v. Liverpool Corporation ex parte Taxi Fleet Operators' Association(1972) 2 B 299.
R. v. Criminal Injuries Compensation Board ex parte Lain (1967) 2 ALLER 770 at 777-778.
In re Pergamon Press Ltd. (1970) 3 ALL ER 535 at 539.
Re Grosvenor and West End Railways Terminus Hotel Ltd. (1897) 76LT 337.
Hearts of Oak Assuarance Company Ltd. v. AG 1932 AC 392, 1932 ALLER 732.
Wiseman v. Borneman 1969 3 ALL ER 275, 1969 3 WLR 706.
Re SBA Proprlies Ltd. – 1967 2 ALL ER 615 1967 1 WLR 799.
R. v. Gaming Board for Great Britain ex parte Benaim 1970 2 ALL ER528 1970 2 WLR 1009.
Russel v. Duke of Norfolk (1949) 1 ALL ER 109.
Premachandra v. Major Montague Jayawickrema and Another (1994)2 Sri LR 90 at 102.
Karunathilleke v. Ameen (1943) 44 NLR 213.
Re U. N. Wijetunga (1976) 70 NLR 515.
Bandaranaike v. de Alwis (1982) 2 Sri LR 664 at 673.
Mohan v. Air New Zealand (1984) ALL ER 201.
R. v. Deputy Industrial Injuries CMR, Ex P. Moore (1965) 1 ALL ER 81.
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)5
APPLICATION for a writ of certiorari against the Special Presidential Commissionof Inquiry.
K. N. Choksy, P.C., with Desmond Fernando, P.C., Sunil Rodrigo, CrossetteThambiah, M. D. K. Kulatunga, Hemantha Warnakulasuriya, Methsiri Cooray,V. K. Choksy and K. Wijetunga for petitioner.
Wijedasa Rajapaksa with Tilaka-Bandara Waduressa, Nihal Bamunuarachchi,Dhammika Abeygunawardena, Kapila Uyanagamage and S. A. Sripathi for the1st and 2nd respondents.
Kolitha Dharmawardena, DSG with Harsha Fernando SC, for the 3rd respondent.
Cur. adv. vuit.
February 05, 1999.
DHEERARATNE, J.
The petitioner moved the Court of Appeal by this application for awrit of certiorari to quash the findings, determinations and recommen-dations, made in respect of him, by a commission which was appointedin terms of the Special Presidential Commissions of Inquiry LawNo. 7 of 1978 as amended by Acts No. 4 of 1978 and No. 38 of1986 (the SPCI Law), consisting of the 1st and 2nd respondents. Theapplication for writ stood transferred to this court in terms of section18A of the SPCI Law, as the 1st respondent commissioner was aJudge of the Supreme Court when he was appointed to thecommission.
The warrant issued by Her Excellency The President dated7th December, 1994, stated :
"Whereas Lalith William Athulathmudali, late leader of theDemocratic United National Front was assassinated on April 23, 1993;
And, whereas, numerous allegations have been made that theinvestigation into the above-mentioned assassination was notconducted in a proper and impartial manner;
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And, whereas, it appears to me to be necessary to establish aSpecial Presidential Commission of Inquiry into the matters hereinaftermentioned, being matters in respect of which an inquiry will, in myopinion, be in the public interest" the 1st respondent and two otherswere being appointed as commissioners. The other two commissionersresigned some time thereafter and the 2nd respondent was appointedcommissioner.
The commissioners were required to hold all inquiries, makeinvestigations, and to make recommendations in respect of thefollowing matters :
"(a) the circumstances relating to the assassination of the late LalithWilliam Athulathmudali at a meeting held at Kirulapone, on April23, 1993, and the person or persons directly or indirectly re-sponsible for such assassination and whether any personsconspired to assassinate, or aided and abetted in assassinatingthe said Lalith William Athulathmudali at Kirulapone on April 23,1993;
the circumstances relating to physical attacks on the late LalithWilliam Athulathmudali –
at Pannala on November 2, 1991;
at Madapatha, Piliyandala on April 23, 1992;
at the Fort Railway Station on August 7, 1992, and
at Dehiwala on August 29, 1992,
and whether the persons involved in, or connected with, any or allof the 3 attacks were directly or indirectly connected with or involvedin the aforesaid assassination;
whether there was a failure or omission on the part of any publicofficer to perform any duty required of him by law, in relationto investigations into the incidents referred to in paragraphs (a)and (b)
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(Dheeraratne, J.)7
whether there was a failure to provide or intentional withdrawalof security by the authorities at the meeting held at Kirulaponeon April 23, 1993, at which the late Lalith William Athulathmudaliwas assassinated and if so, person or persons responsible forsuch failure or intentional withdrawal;
whether there was a failure by the authorities concerned toprovide adequate personal security to the late Lalith WilliamAthulathmudali despite repeated requests by him, for suchsecurity".
The findings of the commission in respect of the petitioner weresummed up in the report at page 215 as follows :
"These crimes have been planned not by a volcanic type ofpersonality who just explodes and subsides. This planner hasawaited his time patiently after careful preparations, and getsothers, perhaps under obligation, to commit crimes to sustain theircorrupt regime. We observe Mr. Sirisena Cooray's conduct inavoiding the commission with a 'letter' and an 'affidavit1 the contentsof which are revealing. His excuses contained in the 'affidavit1 arenot acceptable. His presence was required. These documents arevalueless.
In the background of all the evidence taken together we drawthe irresistable inference, supported by Mr. Cooray's own conductin avoiding the commission by going abroad that he was one ofthose responsible for these assassinations and was directlyconcerned in and a member of the conspiracy to assassinateMr. Athulathmudali in consequence of which conspiracyAthulathmudali was assassinated. All of the facts and circum-stances taken together are not consistent with any reasonabletheory of his innocence.
The commission would ordinarily have recommended that thisact of murder amounts to political victimisation, the procurementof police officers such as the police to assist amounts to corruption,and making up a false scenario in respect of Ragunathan's death,
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a fraudulent act to subvert the course of justice and he {sic) shouldbe subject to civic disability. But this result has already taken placeby operation of law (ie) by reason of his conviction for contemptof the commission. We recommend that he be made subject tocivic disability if our view of the consequences of the finding ofcontempt of the commission are unacceptable. There are alsoPenal Code offences that may be considered by the Attorney-General. Those offences are conspiracy with others to commitmurder, and abetment of the offence of murder".
It was contended on behalf of the petitioner, firstly, that thecommission's findings on contempt and the decision that the petitionerstands deprived of his civic rights by operation of Article 89 (i) (ii)of the Constitution, have been made, in excess of jurisdiction of thecommission. Secondly, it was contended, that the commission'sfindings of complicity with the assassination of Mr. Lalith Athulathmudali,political victimisation, corruption, and subverting the course of justice,in respect of the petitioner, and the recommendation for the impositionof civic disability on him, were made, in the absence of any credibleevidence, and without permitting him the right of legal representation,contrary to the principles of natural justice and contrary to themandatory provisions of section 16 of the SPCI Law.
The 1st and 2nd respondents took up the position that the petitionshould be rejected on the ground of delay. The report of the com-mission was published as a Sessional Paper on 30th January, 1998and was made available to the public only in March, 1998. As faras the determination on the matter of contempt was concerned,although it was made on 18th January, 1997 and the petitioner cameto know of that soon thereafter, it was not until the petitioner hadaccess to the report that he became aware that the commission had"convicted" him and determined that he was disqualified from beingan elector by operation of law. The petition was filed on 19th of May,1998 and we are of the view that there was no delay in making theapplication. The next matter raised on behalf of those respondentswas that inasmuch as the petitioner has acted in breach of RuleNo. 3 (1) (a) of the Court of Appeal (Appellate Procedure) Rules 1990,in that, the proceedings before the commission and notes of the
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)9_
commissioners were not filed along with the petition, the petition mustbe rejected. We pointed out to the learned counsel for those respond-ents, that we have not been invited by this application to exerciseany appellate jurisdiction and therefore the commission's report wasadequate for exercising judicial review.
The other two objections taken on behalf of the 1st and 2ndrespondents were broadly (1) that the writ jurisdiction of this courtwas ousted or affected by the preclusive clauses contained in theSPCI Law and the Interpretation Ordinance and (2) that the reportof the commission was not amenable to judicial review. I shall dealwith those vital issues, in that order before proceeding to consider(a) the determination on contempt and (b) the findings on conspiracyto murder the late Mr. Athulathmudali and other matters, concerningthe petitioner reached by the commission.
Writ jurisdiction of the Supreme Court, the preclusive clausescontained in the SPCI Law, and the provisions of theInterpretation Ordinance.
The general writ jurisdiction was originally conferred on the pre-1978 Supreme Court by the provisions of the Courts OrdinanceNo. 1 of 1889 and thereafter by provisions of the Administration ofJustice Law, No. 44 of 1973. It is significant to observe that thewrit jurisdiction of the present Supreme Court is anchored on twoprovisions of the Constitution which came into force on 7th September,1978. In terms of the Constitution the writ jurisdiction is ordinarilyexercisable by the Court of Appeal. Firstly, Article 126 (3) mandatesthe Court of Appeal, where in the course of hearing into an applicationfor orders in the nature of a writ of habeas corpus, certiorari,prohibition, procedendo, mandamus and quo warranto, if it appearsto that court that there is prima facie evidence of an infringement orimminent infringement of the provisions of chapter III (fundamentalrights) or chapter IV (language rights) by a party to such application,to refer such matter for determination by the Supreme Court. Thatprovision does not concern us in this case. Secondly, Article 140,provides:
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Subject to the provisions of the Constitution, the Court of Appealshall have full power and authority to inspect and examine therecords of any court of First Instance of tribunal or other institution,and grant and issue, according to law, orders in the nature of writsof certiorari, prohibition, procedendo, mandamus, and quo warranto,against the judge of any court of First Instance or tribunal or otherinstitution or any other person.
Provided that Parliament may by law provide that in any suchcategory of cases as may be specified in such law, the jurisdictionconferred on the Court of Appeal by the preceding provisions ofthis Article shall be exercised by the Supreme Court and not bythe Court of Appeal.
The SPCI Law, No. 7 of 1978 came into force on 10th February,1978. The SPCI Amendment Act No. 4 of 1978 which brought inseveral important amendments to the principal enactment, thoughcertified on 22nd November, 1978, was given retrospective effect byits section 12, as having deemed to come into operation on the dateon which the principal enactment came into operation. I may add thatthe amendments naturally led to a great deal of controversy as someof them were directed to nullify the effect of the judgment of the Courtof Appeal in Bandaranaike v. Weeraratne and two otherd'K
Subsection 18A (1) brought in by the SPCI Amendment Act providedthat :
Every application to the Court of Appeal in relation to anycommission established or purported to have been establishedunder this Law or any member thereof and every application tosuch court to which such commission or a member thereof is aparty shall, where such commission at the time it was so estab-lished or such application is made consists of at least one Judgewho was a Judge of the Supreme Court or Court of Appeal orwhere such member at the time of his appointment as a memberof a commission or at the time of the application is or was a Judgeof the Supreme Court or of the Court of Appeal, stand transferredto the Supreme Court which shall in respect of such application
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)_11_
have and exercise all the powers of the Court of Appeal and theCourt of Appeal shall not have or exercise any power or jurisdictionto deal with such application.
It is seen that the provisions of the above subsection are referableto the proviso to the Article 140 of the Constitution. (For similar powergranted to the Supreme Court to issue writs see section 4 of the UrbanDevelopment Projects Special Provisions Act, No. 2 of 1980).
The SPCI Law contains several preclusive clauses either oustingor partially ousting the writ jurisdiction. They are subsections 2 (5),9 (2), and 18A (2). Only subsections 9 (2) and 18A require ourattention in this case. Subsection 9 (2) states that :
"Any report, finding, order, determination, ruling or recommen-dation, made by a commission under this Law, shall be final andconclusive, and shall not be called in question in any court ortribunal by way of writ or otherwise".
Subsection 18A (2) (which is deemed to have come into operationon the date the principal law came into operation) states :
“No court shall, notwithstanding anything to the contrary, havepower or jurisdiction to make any order at any stage whatsoeverand in any manner –
staying, suspending or prohibiting the holding of anyproceeding before or by any commission established bywarrant issued by the President in the exercise of the powersvested in the President under section 2 (1) or the makingof an order, finding, report, determination, ruling orrecommendation by any such commission;
setting aside or varying any order, finding, report, determi-nation, ruling or recommendation of any such commission;
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Provided that where by reason of the provisions of subsection (1)any application stands transferred to the Supreme Court, such courtmay, only upon final determination of such application, make anyorder which, in the lawful exercise of its jurisdiction, such courtmay make;"
(The second proviso omitted)
These preclusive clauses in the SPCI Law must be read subjectto the provisions of section 22 of the Interpretation Ordinance 21 of1901 brought in by the Amendment Act No. 18 of 1972. The impactof section 22 is, where any enactment has used in relation to anyorder, etc., made by any person, authority, etc., the expression "shallnot be called in question in any court" or any other expression ofsimilar import whether or not accompanied by the words "whether byway of writ or otherwise", no court shall, in any proceeding and uponany ground whatsoever, have jurisdiction to pronounce upon thevalidity or legality of such order, etc. The proviso to that sectionspecifies that this provision does not exclude the exercise of thejurisdiction of the Supreme Court or the Court of Appeal underArticle 140 in respect of following matters-namely:
“(a) where the order, etc., is ex facie not within the power conferredon such person, authority, etc.
(b)where such person or authority, etc., is bound to conform to
the rules of natural justice or is obliged to comply with anymandatory provision of law as a condition precedent to makingof such order, etc., and the Supreme Court or the Court ofAppeal is satisfied that there has been no such conformity orcompliance".
The object of subsection 18A (2) of the SPCI Law, seems to meis to restrict to some extent the relaxation brought about by the provisoto section 22 of the Interpretation Ordinance to preclusive clause 9(2) of the SPCI Law. If I may paraphrase subsection18 A (2), that subsection precludes any .court (which includes theSupreme Court) at any stage (a) from staying, suspending or
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)
13
prohibiting the holding of any proceeding before any commission ormaking any order, finding, report, determination, ruling or recommen-dation by any commission; and (b) setting aside or varying any order,finding, etc., of any such commission.
The first proviso to that subsection, however confers power on theSupreme Court, when an application stands transferred to that court,to make any such order in the lawful exercise of its jurisdiction, onlyupon final determination of that application.
The important question of law we are now called upon to decidein this case is whether the untrammelled writ jurisdiction conferredupon the Superior Courts by the Constitution could be lawfullyrestricted in any manner by the provisions of ordinary legislationcontained in the Interpretation Ordinance and the SPCI Law. It appearsthat arguments on this aspect of the matter were not presented tocourt on behalf of the petitioners either in Bandaranaike v. Weeraratneand two others (supra) or in Weeraratne v. Hon. Percy Colin-Thomeand three others<2).
In this connection our attention was drawn to Articles 168 (1) and80 (3) of the Constitution. By virtue of the deeming provision containedin the SPCI Law Amendment Act No. 4 of 1978 that became existingLaw at the time the 1978 Constitution came into operation. Article168 (1) provides that unless Parliament otherwise provides, all laws,in force immediately before the commencement of the Constitution,shall, mutatis mutandis, and except as otherwise expressly providedin the Constitution, continue in force. Article 80 (3) provides that wherea Bill becomes law upon the certificate of the Speaker being endorsedthereon, no court or tribunal shall inquire into, pronounce upon or inany manner call in question, the validity of such Act on any groundwhatsoever.
An analogous question arose in Wickramabandu v. Herath andothers>3) decided by a bench of five judges. H. A. G. de Silva, J. atpage 361 observed : "We are of the view that section 8 of the PublicSecurity Ordinance and regulation 17 (10), which provides that suchan order shall not be questioned in any court on any ground, do not
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affect our jurisdiction. Firstly existing written laws continue in forceexcept as otherwise expressly provided in the Constitution' (Article168 (1); Articles 17 and 126 confer jurisdiction on this court in respectof infringement of fundamental rights, and this is express provisionwhich prevails over any written law to the contrary, including section8 – whatever the position may have been prior to the Constitution.Article 16 (1) saves the Public Security Ordinance (since it is existinglaw) but only from invalidation on the ground of inconsistency withfundamental rights; it does not validate any inconsistency with Articles17 and 126. Secondly, the power to make Emergency Regulationsdoes not include the power to make regulations overriding theprovisions of the Constitution (Article 155 (2); Regulation 17 (10)therefore cannot override or in any way affect the jurisdiction of thiscourt under Articles 17 or 126". See also Visuvalingam and othersv. Liyanage and others Kulatunga, J. in Hopman and others v.Minister of Lands and Land Development and others at 247expressed the view that power derived from Article 140 is not affectedby section 24 of the Interpretation Ordinance. In Atapattu and othersv. People's Banl<f6) it was held that the constitutional provisions beingthe higher norm, must prevail over the ordinary staturory provisions.The words 'subject to the provisions of the Constitution in Article 140was necessary to avoid conflicts with other provisions of the Con-stitution as Articles 18 (3), 120, 124, 125, and 126 (3). Those wordsdo not refer to contrary provisions of written laws kept alive by Article168 (1). Where the Constitution contemplated that its provisions maybe restricted by other written laws as well, the phrase “subject tothe provisions of the Constitution and of any law" was used, as inArticle 138 (1).
We are here certainly not inquiring into, pronouncing upon, or inany manner calling in question, the validity of the SPCI AmendmentAct No. 4 of 1978 as contemplated by Articles 80 (3). The Consti-tutional provision must prevail over normal law. For the reasons statedabove I hold that the jurisdiction conferred on this court by Article140 is unfettered.j
i
The phrase “according to law" in Article 140 was also ; used insection 42 of the Courts Ordinance and was judicially interpreted to
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)15
mean that writs should be issued in the circumstances known toEnglish Law. See Goonasinghe v. de Kretseim and K. Nakkuda AHv. Jayaratnd®. We must assume that the phrase was used in Article140 in the same sense and that proposition admits of no controversy.
Before I part with this section of the judgment let me make a briefreference to the scope of judicial review. The grounds of judicial reviewwere originally broadly classified as three-fold. The first ground is"illegality"; the decision-maker must understand correctly the law thatregulates his decision-making power and must give effect to it. Thesecond is “irrationality" namely Wednesbury unreasonableness(Associated Provincial Picture Houses Ltd. v. Wednesbury Corpora-tion(9). The third is "procedural impropriety". (Halsbury 4th bd.,vol. 11 para 60). To these grounds a fourth may be added"proportionality". See Lord Diplock in CCSU v. Minister ior theCivil Service<,0) at 951.
Amenability of the Commission's report to judicial review.
What attracts judicial review Lord Justice Atkin in The King v.Electricity Commissioners; Ex parte London Electricity Joint CommitteeCompany (1920) Ltd. and others011 said : "Whenever any body ofpersons having legal authority to determine questions affecting therights of subjects, and having the duty to act judicially, act in excessof their legal authority they are subject to the controlling jurisdictionof the Kings Bench Division exercised in these writs".
This dicta was faithfully followed in some cases in Sri Lanka wherejudicial review was sought on reports of commissions appointed underthe Commissions of Inquiry Act, No. 17 of 1948. In de Mel v. deSilvaf'2) it was stated that the commissioner was not expected to makeany order in his report affecting the legal rights of the petitioner; thatwas unnecessary in view of subsection 5 (1) of the Colombo MunicipalCouncil Bribery Commission (Special Provisions) Act No. 32 of 1949,which stated that the Governor-General shall cause the finding, ifadverse to the petitioner, to be published in the Gazette; and thaton such publication, the petitioner was to be subjected to thedisqualifications set out in that subsection; an adverse finding by the
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commissioner necessarily affected the legal rights of the petitioner.For this reason, the court was of the view that the respondentcommissioner was a person having legal authority to determine aquestion affecting the rights of the petitioner and having a duty toact judicially. In Dias v. Abeywardend,3», it was stated that there wasliterally nothing in the Commissions of Inquiry Act, by reason of whichsuch a determination can create, affect, or prejudice, the rights andobligations of persons. It was held that the commissioner was notexercising judicial functions. In Fernando v. Jayaratnd'® it was statedthat the only power the commissioner had was to inquire and makea report and embody therein his recommendations. He had no powerof adjudication in the sense of passing an order which can be enforcedproprio vigore, nor did he make judicial decision. The report of thecommissioner had no binding force; it was not a step in consequenceof which legally enforceable rights might be created or extinguished.In the Supreme Court judgment in Re Ratnagopal <,5a> – set aside bythe Privy Council in Ft. Ratnagopal v. The Attorney-General(15t>) on theground of invalidity of the appointment of the commissioner – at page422 it was stated that the purpose of the commission, which wasmerely to inquire and report on certain matters, did not involve in theexcercise of judicial or quasi-judicial functions, or even of executivepower; that being so, any failure of the commission to duly carry outits purposes was a subject for complaint to the Governor-General andnot to courts. Again in Silva and others v. Sadique and others!'® settingaside the judgment of the Court of Appeal in Mendis, Fowzie andothers v. Goonawardena and Silvat'7), it was held that a commissionof inquiry established under the Commissions of Inquiry Act did nothave the legal authority to make binding decisions; any penalty orconsequence that followed a report of such a commission was bythe action of some other authority, although, it may be based on thefindings contained in the report; the report did not take effect propriovigore.
Over the years frontiers of Lord Atkin's formula in ElectricityCommissioners case have been advanced by judicial decisions. It isno longer the duty to act judicially or quasi-judicially which attractsreview but the "duty to act fairly”. See Selvarajan v. Race RelationsBoard181 R. v. Secretary of State for Home Department, ex parte
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.) 17
HosenbalP*'; and Breen v. Amalgamated Engineering Union andothersF°K
Wade and Forsyth (7th) edition at page 516 states: “Acting fairlyis a phrase of such wide implication that it may ultimately extendbeyond the sphere of procedure. It was suggested in one case thatit included a duty of acting with substantial fairness and consistency.[CHVT Ltd. v. Price Commission,21> at 179 – Scarman, LJ]. But whenLord Denning MR said much the same thing (that not only must therebe a fair hearing but 'the decision itself must be fair and reasonable')the House of Lords repudiated his opinion. [Chief Constable of NorthWales Police v. Evansf22' perhaps giving Lord Denning's words thewider meaning than he intended. In Daganayasi v. Minister of Im-migratiorf23) Cooke, J. said that (fairness need not be treated asconfined to procedural matters . . .] On the other hand, fairness maynot necessarily comprise the whole domain of natural justice. Inspec-tors investigating the affairs of companies, who are subject to the dutyto act fairly, are not required to be free from bias. [/? v. Secretaryfor Trade, ex parte PerestrellcP*). Yet, the same phrase has been usedto describe a duty to act honestly and without bias or caprice butwithout any need to disclose the charge or give a hearing. [Mclnnesv. Onslow-FaneP*'. Judges seem to be using it in a variety of differentsituations, so that it has no precise meaning except when used asa synonym for natural justice".
The phrase “affecting the rights'1 in Lord Atkin's dicta has beenliberalized to mean not rights in the jurisprudential sense. They neednot be legally enforceable rights; they may not be immediatelyenforceable rights but a decision in merely a step as a result ofwhich legally enforceable rights may be affected. See R. v. LiverpoolCorporation, ex parte Taxi Fleet Operators, Association^26) andR v. Criminal Injuries Compensation Board, ex parte Lain{27). LordDenning, MR in Re Pergamon Press LtdJsa) at 539 observed:
"It is true of course, that the inspectors are not a court of law.their proceedings are not judicial proceedings; see Grosvenor andWest End Railway Terminus Hotel Ltd;129'. They are not even quasi-judicial, for they decide nothing; they determine nothing. They only
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investigate and report. They sit in private and are not entitled toadmit the public to their meetings; see Hearts of Oak AssuranceCompany Ltd. v. AGP®. They do not even decide whether thereis a prima facie case, as was done in Wiseman v. BornemarP'K
But this should not lead us to minimise the signifcance of theirtask. They have to make a report which may have wide reper-cussions. They may, if they think fit, make findings of fact whichare very damaging to those whom they name. They may accusesome; they may condemn others; they may ruin reputations orcareers. Their report may lead to judicial proceedings. It mayexpose persons to criminal prosecutions or to civil actions, it maybring about the winding-up of the company, and be used itself asmaterial for the winding-up; see Re SBA Proprties Ltd.®2' Evenbefore the inspectors make their report, they may inform the Boardof Trade of facts which tend to show that an offence has beencommitted – see S. 41 of the Companies Act 1967. When theydo make their report, the board are bound to send a copy of itto the company; and the board may, in their discretion, publishit, if they think fit, to the public at large. Seeing that their workand their report may lead to such consequences, I am clearly ofopinion that the inspectors must act fairly. This is a duty whichrests on them, as many other bodies, although are not judicial,nor quasi-judicial, but only administrative, see R. v. Gaming Boardfor Great Britain, ex parte BenainrP3>.
It is sufficient if the recommendation or decision of the authorityhas the effect of potentially jeopardising the rights of persons. Thefact that the recommendations are not self-executory or the fact thata discretion of some other authority interposes between the recom-mendation and any actual consequences to the persons affected, doesnot necessarily preclude judicial review. It is the nature, functions andpowers of the commission that would determine whether thecommissioners have a duty to act fairly. See Russel v. Duke ofNorfolk. For this purpose let me refer to some features of the warrantand the provisions of the SPCI Law. The warrant granted to thecommission requires it to inquire into certain aspects of theassassination and four physical attacks on thejate Lalith Athulathmudali,which are all criminal acts, and to make recommendations. The SPCI
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.) 19
Law grants the commission power to determine and report whetherany person is guilty of any act of political victimization, misuse or abuseof power, corruption or fraudulant act, in relation to any court or tribunalor any public body, or in relation to the administration of any lawor administration of justice; and in those circumstances to recommendwhether such person should be made subject to civic disability (section9 (1)). That recommendation can result in the Parliament taking stepsto impose civic disability or expel that person from Parliament if heis a MP (Article 81). It has the power to summon witnesses and toreceive evidence on oath or affirmation (section 7 (a) to (c)). It haspower to admit evidence which might be inadmissible in any civil orcriminal proceedings (section 7 (d)). In relation to any person (1) whois specified in the warrant as a person whose conduct is the subjectof inquiry or (2) who is in any way implicated or concerned in thematter under inquiry or (3) who in the opinion of the commission, isin any way implicated or concerned in the matter under inquiry, thecommission has the power to so inform that person (section 16). Poweris granted to the commission to determine whether a person hascommitted an offence of contempt (section 12). This determination canlead to a person being convicted of that offence by the Supreme Court.That conviction can result in that person being disqualified for sevenyears from being an elector or a Member of Parliament (Articles 89and 90 of the Constitution). The commissioners are immune from civiland criminal proceedings (section 18). The commission can thus cometo several determinations and decisions which can have seriousrepercussions as pointed out by Lord Denning, MR in Pergamon case{supra). That is the very reason why the law casts on thecommissioners a duty to act fairly.
In terms of subsection 2 (1) of the SPCI Law the legislature hasgranted the power to the President to appoint to the commission judgesof a court not below the District Court. There must be some goodreason for the legislature to pick judges from a long catalogue ofseveral qualified professionals. The legislature has in all probabilitygiven its mind to the fact that a judge will bring to bear in functioningas a commissioner, his legal training and judicial experience, and thatthe combination of those attributes will make him not only to act,in the words of Burke, with “cold neutrality of an impartial judge", but
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also fairly. There is no parallel provision in the Commission of InquiriesAct, No. 17 of 1948 to appoint judges as commissioners, yet it isinteresting to reflect upon how great judges of this court, injected intocommission proceedings a degree of fairness, particularly beforelabelling a person as a criminal. They were quite conscious, beingpublic functionaries on whom enormous powers were vested by law,of the fact that “it is excellent to have a giant's strength, but it istyrannous to use like a giant" (Measure for Measure). For instancein the Bandaranaike Assassination Commission headed by JusticeT. S. Fernando, the commissioners stated at page 36 of the report(Sessional Paper III – 1965) :
"Section 7 of the Commissions of Inquiry Act, No. 17 of 1948,empowers our commission to admit this confession in evidenoenotwithstanding the provisions of the Evidence Ordinance. Althoughthere is, therefore, no legal bar to our admitting the confession,it is entirely a matter for us to decide what weight we should attachthereto. The very important question of the weight to be attachedto the evidence of this confession would not have risen before ushad Somarama been available to be called as a witness beforeus. Somarama was dead before our commission was appointed.The sentence of death pronounced on him at the trial had beencarried out in 1962 some time after his application for special leaveto appeal from the dismissal by the Court of Criminal Appeal ofhis appeal against the conviction and sentence passed in theSupreme Court had been refused by the Privy Council. We weretherefore left without an opportunity of testing the truthfulness ofthat part of the confession of Somarama which tended to implicateMr. Dickie de Zoysa in the conspiracy to kill Mr. Bandaranaike,and accordingly decided that we should not at our inquiry admitthe confession as an item of evidence against Mr. de Zoysa."
In similar vein, Justice K. D. de Silva the one-man commissionerappointed to the Navy Commission in his report (sessional paper VI1963) at page 31 stated: "This is not a court proceeding. This inquirywas held under the provisions of the Commissions of Inquiry Act (cap.393). The Evidence Ordinance (cap. 14) is not wholly applicable toit. Section 7 (d) of the Commissions of Inquiry Act, inter alia, states
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)21_
that a commission appointed under the Act shall have the power'notwithstanding any of the provisions of the Evidence Ordinance, toadmit any evidence, whether written or oral, which might be inadmis-sible in civil or criminal proceedings'. As I have stated earlier, thisis mainly a fact-finding commission. The object is to ascertain the truthpertaining to relavent matters. Hearsay evidence is admissible at suchan inquiry. Of course in assessing the value of a statement madeby a person who is not available for cross-examination, great cautionhas to be exercised. The effective means of testing the statementof a witness is cross-examination. In the case of hearsay evidencethat test is not available. Nevertheless, the statement need not beruled out at an inquiry such as this; but before placing any relianceon such a statement, the commissioner should be satisfied, beyondreasonable doubt, that the facts appearing in such a statement whichare accepted, are true. Whether or not such a statement iscorroborated by independent evidence is a matter of great importance".
Although one counsel appeared for both the 1st and the 2ndrespondents at the hearing of this application, two different counselhave filed written submissions on their behalf. I mentioned this factonly to refer to a submission made by counsel for the 1st respondentin his written submissions regarding our jurisdiction. That submission,in counsel's own words is this: "If a report or a recommendation ismade, enabling the legislature to pass a statute or a resolution (that?)cannot be interpreted by the Supreme Court, as it amounts to aninterference into the sovereignty of the people which is exercisedthrough the Parliament. On the other hand such an interference isdirectly against the basic rule of inalienability of the sovereignty".
I may say that we have not the least intention or desire to interferewith any statute or any resolution the Parliament may in its wisdompass; nor to trespass on people's sovereignty. We are only concernedwith the validity of matters affecting persons the commissioners deter-mine as public functionaries. In a democracy, the commissions cannotbe permitted to be a law unto themselves and operate outside theambit of the Rule of Law. As observed by G. P. S. de Silva CJ inPremachandra v. Major Montague Jayawickrema and another35'". . .at 102 Our Constitution and the system of government are foundedon the Rule of Law; and to prevent the erosion of that foundationis the primary function of an independent judiciary".
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Section 18A of the SPCI Law itself contemplates the exercise ofjudicial review by the Superior Courts over commissions appointedunder that law.
Findings by the Commission on the offence of contempt.
The SPCI Law draws a distinction between, on the one hand awitness (sec. 7) and on the other a person (a) who is specified inthe warrant (of the President) as a person whose conduct is the subjectof inquiry or (b) who is in anyway implicated or concerned in the matterunder inquiry or (c) who is in the opinion of the commission, is inanyway implicated or concerned in the matter under inquiry (section16). In the case of the former, the commission has the power tosummon him to attend any meeting of the commission to giveevidence, or to produce any document or other thing in his possessionand to examine him as a witness or require him to produce anydocument or other thing in his possession (subsection 7 (1) (c)). Everyperson on whom a summons is served shall attend before the com-mission at the time and place mentioned therein, and give evidence(subsection 11 (3). In the case of the latter person (for convenienceI may call person implicated), he shall be so informed by thecommission and after he was so informed, be entitled to be rep-resented by one or more Attorneys-at-law, at such state of inquiryas is relevant thereto. There is a third category of persons contem-plated in section 16, who are neither summoned nor informed, thatis persons who consider desirable that they should be representedat the commission; such persons may be represented only with leaveof the commission. The SPCI Law thus makes provision for personswho may be affected by determinations and decisions of commissionsto be heard and to be represented by lawyers.
So a witness is summoned to give evidence, whereas a personimplicated is informed (but not summoned) and permitted legal rep-resentation, The law appears to be predicated upon that salutaryprinciple tenetur se ipsum accusare – the law compels no man tobe his own accuser or to give any testimony against himself. Seealso Karunatilleke v. AmeerF*.
SC B. Sirisena Cooray v. Tissa Diets Bandaranayake and Two Others
(Dheeraratne, J.)23
If any person fails, in answer to the summons, appear before thecommission, such a person is liable to be arrested and upon his arrestbe produced before the commission and the commission may orderthe remand of that person to the custody of the fiscal of the highestcourt exercising original jurisdiction within the judicial zone of Colomboor any other convenient zone, or order his release upon such termsas a commission may determine (subsection 11 (4)). Subsection12 (1) provides that a person on whom a summons is served, failswithout cause, which in the opinion of the commission is reasonable,to appear before the commission at the time and place mentionedin the summons, such person shall be guilty of the offence of contemptagainst, or in disrespect of the commission. (The proviso to thatsubsection relates to other types of contempt). Where the commissiondetermines that the person has committed any offence of contempt,the commission may cause its secretary to transmit to the SupremeCourt, a certificate setting out such determination (subsection 12 (2)).Subsection 10 (1) provides that every offence of contempt committedagainst the authority of the commission, shall be punishable by theSupreme Court, as though it were an offence of contempt committedagainst such court. In any proceedings for punishment of an offenceof contempt "which the Supreme Court may think fit to take cognizance"as provided by section 10, any document purporting to be a certificate(setting out the determination) shall (a) be received in evidence withoutfurther proof, unless contrary is proved, and (b) be conclusive evidencethat the determination set out in the certificate was made and thefacts stated in the determination (subsection 12 (3)).
I may straight away mention here that the Supreme Court doesnot act as a rubber stamp; first, it may take cognizance (or may not),second, it will inquire into whether an offence of contempt was committed,before it proceeds to convict and impose a sentence. (See Re U. N.Wijetunga,37) – contempt in respect of a commission appointed underthe Commissions of Inquiry Act).
There is an added consequence of a conviction for contempt,whatever penalty the Supreme Court may impose. That is, the personso convicted, in terms of Article 89 of the Constitution become,disqualified from being and elector, if a period of seven years has
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not elapsed since “the date of his being convicted". In terms of Articles90 and 91, if a person is disqualified to be an elector he is disqualifiedto be elected as a Member of Parliament.
Let me now come to the facts leading to the petitioner being foundguilty of contempt of the commission. On 12th April, 1996, a reportof evidence given by an unnamed witness before the commission,that the petitioner was connected with alleged criminal activities ofa person known as "Sotti Upali” and that some arms, etc., were foundhidden in the garden of the petitioner's premises, was published inthe Daily News. On 15th April, 1996, the petitioner wrote to thesecretary of the commission, refuting those allegations. He wrote, "Iwrite to inform the commission that the evidence is absolutely false.I am prepared to appear before the commission and testify that theevidence of this witness, so far as I am concerned, is a totalfabrication". Refering to this letter the commission in its report at page207 stated :
"As far as the commission is concerned that item referred toby Cooray may have been mischievously reported. There was infact no such evidence on record or according to commissioners'notes. The commission therefore had no reason to communicatewith Mr Cooray on the subject. The proceedings would have beenavailable for scrutiny. Therefore his reference merely to a news-paper report and not to the proceedings is both suspicious andsuggestive".
On 1st May, 1996, the petitioner left the Island and returned on18th June, 96. On 26th June, 96, the petitioner left to the USA. On12th July, 1996, by notice dated 12th July, 1996 sent to the petitioner'sresidence, the commission informed the petitioner, that it was ofopinion that the petitioner was a person whose conduct should besubject of inquiry and that he was entitled to legal representation. Thepetitioner was not required to appear before the commission. The 1stand 2nd respondents have admitted in their affidavits that this noticewas issued in terms of section 16 of the SPCI Law. On 2nd August,1996, when the petitioner was still out of the Island, the secretary
25
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others(Dheeraratne, J.)
of the commission by its order wrote letter P3 to the petitioner,addressed to his residence, stating that :
"I refer to your letter dated 15. 4. 96 requesting me to affordyou an opportunity to appear before the commission to give evidence.
Please attend the office of the commission on Friday 9th Augustso that your statement may be recorded in.the 1st instance".
This letter was written despite the fact that "there was no suchevidence on record or according to the commissioners' notes". Butthat is not the issue; was P3 a summons? There was no summonsrequiring the petitioner as a witness to attend before the commissionand to give evidence. Learned DSG was unable to assist us withreference to any law which enabled the commission to require a personto attend the office of the commission in order to record a statementpreparatory to giving evidence. Even if that was possible, such acommunication was no summons.
On 8th August, 1996, the petitioner's son replied to P3 to say thatit was received on the 7th August and it would be handed over tothe petitioner on his return to the Island. On 19th December, 1996,the commissioners got the document P5 (in Sinhala) and P5A (inEnglish) pasted on the front door of the petitioner's residence, whilethe petitioner was yet out of the Island. Material parts of P5A reads
"Whereas the commission has written to you (by) registered postthat you are a person whose conduct should be the subject ofinquiry in respect of matters referred to in the warrant issued byHer Excellency the President of Sri Lanka, to wit, a conspiracyto assassinate or aid and abet the assassination of the late LalithAthulathmudali and other connected matter and informing you thatyou are entitled to representation by Attorneys-at-law.
Whereas the said commission further request you by letter of2. 8. 1996 to attend the commission office on 9. 8. 1996 to makea statement.
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[1999] 1 Sri L ft.
Whereas your son Mr. Ajith Cooray has informed the commis-sion that the said letter of 2. 8. 1996 written to you was receivedat your residence No. 226, Lake Drive, Colombo 8.
And, whereas your son Mr. Ajith Cooray has informed thecommission that you are abroad.
And, whereas, the National Intelligence Bureau has informedthe commission that you left Sri Lanka on 24. 6. 1996 with yourwife Srimathi and your son B. M. Prasanna Cooray for one month'svacation to Hongkong.
And, whereas, statements made to the commission by your sonMr. Ajith Cooray show that you have been in Washington in theUnited States of America and that you are moving from place toplace in India where he met you in New Delhi.
And, whereas, the evidence so far pleas (placed) before theCommission disclosed your complicity in the murder of the late LalithAthulathmudali.
These are therefore to command you to be present and appearin person on 9. 1. 1997 at 11 am before the commission".
This document can neither be construed as a summons to a witness“to attend any meeting of the commission to give evidence"(subsections 7 (1) (c) and 11 (3)), nor a notice to a person implicated(section 9) where no personal attendance could be required. Was thepetitioner told why he was commanded to appear? Certainly he wasnot; but the commission has provided the answer in its report at page209 :
“We would have liked to have Mr. Cooray's views on the sackingof Athulathmudali from the UNP in August, 1991 and his views onthe so-called impeachment motion under Article 38 (1) of the Con-stitution, which was never in fact presented to the Speaker.
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)27
The commission would also have liked to question Sirisena Coorayon the running of the Housing Ministry, the allocation of houses andflats to public officers, the source of the money to run Gam Udawas,why he transferred his pistol which was personal to him to Sothi Upali,about his dealings with the Mahaweli Marine Agency, the complaintsof the public that by his political patronage Sothi Upali receivedprotection from police officers, the state of his assets and financesabroad and in Sri Lanka since 1976. These are some of the mattershe could have assisted the commission on. The commission wouldalso have questioned him about the Terms of Reference in the Warrantand his views on the testimony of witnesses who tend to implicatehim in the conspiracy to assassinate Athulathmudali. But it was notto be. He did not even answer the summons and kept away fromthe commission altogether. Instead he tried to introduce Attorney-at-law into these proceedings to watch his interests whereas he wasrequired to be present in person".
The commissioners quite erroneously overlooked the fact that underthe law the petitioner had the right of representation by lawyers; itis not a cheap "introduction" but a cherished right recognized throughout the civilized world. Most of those matters mentioned by thecommissioners clearly fell outside the ambit of the warrant. To comeback to the narrative of events, on the 3rd January, 1997, in responseto P5A, petitioner's attorney-at-law, sent to the secretary of commissiona letter informing of the inability of the petitioner's retained counselto appear before the commission on 9th January and seeking anotherdate. On the 9th Mr. Anil Silva attorney-at-law appeared before thecommission on behalf of the petitioner and moved for a date to enablesenior counsel to appear for him. That application was refused onthe ground that lawyers had no standing as the petitioner had failedto appear on summons. The commission thereafter proceeded on thesame day to issue a warrant of arrest of the petitioner. I may mentionhere that for the reasons given by me earlier, the summons wasflawed; and therefore the warrant too was flawed.
On the 18th of January, 97, the commission purported to makea determination that the petitioner was guilty of the offence of contempt
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in terms of section 12 (1) of the SPCI Law. On hearing of the refusalto permit lawyers to appear for him and the issue of the warrant againsthim the petitioner, who was, in Australia at that time submitted throughhis attorney-at-law, to the commission on 14th February, 97, anaffidavit sworn on 29. 1. 97 in Australia explaining, among othermatters, why he chose to be away from the Island. The contents ofthat affidavit are immaterial for the decision of this application in viewof our finding that the so-called summons has no validity in law. Thecommissioners expressed their suspicions even on the stamp affixedto the petitioner's affidavit, though they had a statement from the InlandRevenue Department that it was properly issued by that departmenton 13. 2. 97. commissioners observed : "The stamp on the affidavitis also controversial. We have a statement from the postal authoritiesthat the stamp has long been invalid. It is ancient" (page 210).
The commission in its report, thereafter, proceeded to make aseries of astounding propositions of law regarding its determinationon contempt. It is right to say that the commission is not requiredby law to transmit a detemination made on contempt to the SupremeCourt. The commission says : “there is a good reason for this discretionremaining with the commission. There is a legal principle that anoffender should not be punished twice for the same offence" (page210). The commission has no punitive power whatsoever. Its deter-mination will remain a "damp squib" if the Supreme Court does nottake cognizance of the offence. The commission then went on to say:"Certain Constitutional provisions now take over. The commission nowconsiders certain provisions in chapter 14 of the Constitution. Thechapter deals with The Franchise and Elections" (page 211). Thenthe commission having cited portions of Articles 89 – 91 relating todisqualifications from being an elector and being elected as a MP,on being convicted of an offence of contempt, stated : – "Thisdisqualification applies to Mr. Cooray as he was convicted by thiscommission for avoiding the summons without reasonable cause. Inthe result Mr. Sirisena Cooray is disqualified from being elected toPaliament for a period of 7 years from the date of his conviction .. . This result the commission considers Jo be in the nature of apunishment", (page 212).
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)29
The commission has no power to "convict" any person of anyoffence and that is a power vested exclusively with the regular courts[see Article 13 (3) of the Constitution]. If legal representation waspermitted on behalf of the petitioner, probably even the most juniorlawyer would not have taken much time to convince the commissionthat it had no power to convict a person of an offence. The com-missioners could have entertained doubts in their own minds as totheir competence to convict a person and that is why probably theymade a qualified recommendation in saying "we recommend that hebe made subject to civil disability if our view of the consequenceson the finding of contempt of the commission is unacceptable". Thatview is unlawful and unacceptable in law.
Decision that the petitioner was directly concerned in and wasa member of the conspiracy to assassinate Mr. Athulathmudaliand other decisions leading to the recommendation that thepetitioner be made subject to civic disability.
The Penal Code states that a person abets doing of a thing firstly,if he instigates any person to do that thing; or secondly, if he engagesin any conspiracy for the doing of that thing; or thirdly, if he intentionallyaids, by any act or illegal omission, the doing of that thing (section100). The natural meaning of "to aid" is to give help, support orassistance to; and of "to abet" is to incite, instigate or encourage (Smithand Hogan 8th edition). The offence of conspiracy is committed, interms of the Penal Code, when two or more persons agree to commitor abet or to act together, with a common purpose for or in committingor abetting an offence, whether with or without any previous concertor deliberation (section 113A). In his written submissions, learnedcounsel for the 1st respondent submitted that the ingredients to prove"abetment" and "conspiracy" at a commission appointed under theSPCI Law are different from what is required under the Penal Code;they are less in gravity; the reason for this difference, he stated, wasthat a violation of the penal laws entail in penal consequences;whereas if the recommendation of the commission is accepted by thelegislature, it will impose only civic disability on the petitioner; civic
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disability is not a punishment. We reject this dangerous heresy fortwo reasons. Firstly, norms of criminal culpability should be certainand they cannot take different shades depending on who applies them.Secondly, learned counsel's submission is based on the belief, (likethe scant respect the commissioners had to the right of representationby lawyers) that the right to vote is an inferior kind of right of noconsequence and therefore that a person could be deprived of thatright less seriously. Article 21 (1) of the Universal Declaration ofHuman Rights states : "Everyone has the right to take part in thegovernment of his country, directly or through freely chosen repre-sentatives". In Bandaranaike v. de AlwidM) Samarakoon, CJ calledthat right "the most precious of them all". That right should not belightly interfered with.
The petitioner in his petition stated that the resasons for thecommissioners conclusion regarding his complicity with the assassi-nation of Mr. Athulathmudali are set out at page, 213 and 214 ofpart 1 of the report (para 21). This was admitted by the 1st and 2ndrespondents in their affidavits (vide para 19 of each respondent'saffidavit). I mentioned this matter here, because when we inquiredfrom the learned counsel for the commissioners, in the course of thehearing reasons for the conclusions reached by them, he did submitthat some more reasons may have appeared in the proceedings, whichwere not stated in the report.
I shall now set out those reasons verbatim from the report, statedafter the point at which the commission purported to "convict" thepetitioner of contempt.
The question is, why is he avoiding being questioned respect ofthe terms of reference and other relevant matters? His conduct is notconsistent with his innocence. Quite apart from the legalconsequences that have followed his foolish conduct, the evidencebefore us concerning him shows :
(a) that President Premadasa found him a loyal ally, one whoco-operates with and supports and helps him.
31
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others(Dheeraratne, J.)
(fc>) President Premadasa had strong motive to eliminateAthulathmudali, a strong political opponent, one who hasinsulted him by the so-called impeachment motion, one whomhe had sacked from the UNP, one who has severely criticisedhis co-operation with the enemy, the LTTE, by supplying themwith modern weapons; cash and handcuffs to be used asinstruments of torture, one who was seeking to expose himbefore international community. Mr. Sirisena Cooray sided withPremadasa on all these issues.
being badly defeated by Athulathmudali in the number of pref-erential votes cast in the Colombo district which was Mr. SirsenaCooray's stronghold, Mr. Sirisena Cooray as general secretaryof the UNP moves to oust Athulathmudali from representing theColombo district and send him to Kalutara district. That wasthe evidence. Mr. Cooray would have his own motives to getAthulathmudali out of the way.
strong political links are shown among Messrs. Premadasa,B. S. Cooray, Weerasinghe Mallimarachchi and U. L. Seneviratne.Mr. Seneviratne is still not at national level. The other threewere Ministers, leaders and his masters;
there is reliable evidence which we accept, coming from severalsources that Mr. U. L. Seneviratne played a key role in theassassination that took place in Kirulapone on 23. 04. 93; hehas sought to contract a person to kill Athulathmudali; he hasrequested bombs to be made and supplied all the materials forsame and they were in fact made and given to him. All thewhile the assassin Janaka alias Sudumahattaya was presentand it was U. L. Seneviratne's own flat within PresidentPremadasa's premises named "Sucharitha" in Keselwatta.
U. L. Seneviratne had earlier organised the physical attack onAthulathmudali at the Fort Railway Station on August 7, 1992 andthe raiding party which formed an unlawful assembly had started offfrom his flat at Sucharitha. He too was present during the assault.But this shows the level of his organisational skill – an obvious frontalattack quite openly done, without guile with no effort made to disguisethe operation or make identification difficult. But was such a mancapable of all the elaborate planning and all the lies and deception
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that has unfolded? Deception has been a paramount consideration!We think not.
On the contrary, that direction has to come from elsewhere, frompeople with exceptional organization skills, capable of having thesupport of a large number of public officials such as policemen tomake such an event (ie); an assassination of a political leader in witha chance, a credible winning candidate, possible and to supply cover-up. Here we see just those things. The police withdraw security. Afterthe event police tamper with evidence and continue to present a falsepicture to the public. Another person is killed and falsely presentedas the assassin. Without this help the event is not possible. And towhat length they have gone to falsly implicate the LTTE.
To get the co-operation of all these public officials needs someoneat a high political level who would protect them by using his politicalpowers, with money, with newspaper publicity, with weapons, etc.Seneviratne, the field manager of this enterprise using the underworldcharacters, thugs, drug dealers could not have got the co-operationof all these policemen from different police stations and authorities.But President Premadasa and Mr. Sirisena Cooray could have. Theyhad the political clout to secure this assistance to get policemen touse their lawful powers in an improper unlawful manner. We see thisover and over again, physical attacks and a police cover-up.
There is evidence of an admission by U. L. Seneviratne whilst inremand jail, where his company would be persons similarly placed,that it was Sirisena Cooray and Weerasinghe Mallimarachchi whowanted Athulathmudali destroyed as he was a political threat, andtherefore U. L. Seneviratne spent money to get it done. What he didis mentioned {supra). We have evidence that the assassinSudumahattaya was a friend and bodyguard of minister Mallimarachchi.We also have evidence that Mr. Ranjit Upali de Silva alias "SothtiUpali was bodyguard to Mr. Sirisena Cooray and worked closely withhim participating in election campaigns, turfing Gam Udawas, givencontracts by Cooray to run canteens at these shows, etc., and generalsecurity supervision. "Sothti Upali it was who held Ragunathan incaptivity and had him killed and the scene where his body lay madeup to simulate a case of suicide. These are compelling and irresistableinferences we draw from established circumstances".
SC B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others
(Dheeraratne, J.)33
This is followed by the conclusion reached by the commission inrelation to the petitioner which I have referred to in full elsewherein this judgment. Those conclusions are that the petitioner –
was directly concerned in and was a member of the conspiracyto assassinate Mr. Lalith Athulathmudali whose murder amountsto political victimisation;
procured police officers to assist, which amounts to corruption;
made up a false scenario in respect of Ragunathan’s death;a fraudulant act to subvert the course of justice.
Besides the double hearsay evidence of the prisoner there wasonly suspicion lurking throughout in the commissioners' minds asevidenced from the report that the petitioner "could have" done variousacts. The technical rules of evidence certainly are not applicatble tothe proceeding of the commission. But what probative value did theevidence of the prisoner who spoke about a confession of Seneviratneand involvement of the petitioner carry? Principles of natural justicerequire that a tribunal's decisions are based on some evidence ofprobative value. (See Mahon v. Air New Zealand391 and R. v. DeputyIndustrial Injuries Cmr, ex p Moord*0). About Seneviratne the com-missioners said : "U. L. Seneviratne did not respond in anyway tothe notice. He was not represented by an attorney-at-law. He did notgive evidence or wish to cross-examine anyone. He kept silent" (page199). The commission did not want to examine him as a witness.Regarding a person called Somaratne who did respond to the section16 notice, the commissioners said : "He kept silent as he was entitledto". The same silence, the petitioner was not entitiled to and thecommissioners evinced a great anxiety to examine him as a witness.His lawyers were refused audience on the ground that the petitionerwas absent. The commissioners have not been able to specify anyact of commision or omision on the part of the petitioner to cometo their conclusions. As Bacon has observed : "Suspicions amongstthoughts are like bats amongst birds, they ever fly by twilight. Certainlythese are to be repressed or at least well-guarded; for they cloudthe mind . . ."
We hold that the determination and recommendations are flawedin the first place, as being unreasonable in the sense that the
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commissioners did not call their own attention to the matters whichthey were bound to consider (see Associated Provincial Picture HousesLtd. v. Wednesbury Corporation {supra). Secondly, as they are notbased on evidence of any probative value (see Mahon v. Air NewZealand {supra). Thirdly, because those determinations and recom-mendations have been reached without giving the petitioner a rightof hearing through his lawyers, in breach of the principles of naturaljustice and in breach of the provisions of section 16 of the SPCILaw.
Conclusion
For the reasons given above we issue a mandate in the natureof a writ of certiorari setting aside and quashing –
the determination of the commission that the petitioner is guiltyof the offence of contempt against or in disrespect of thecommission in terms of subsection 12 (1) of the SPCI Law;
the finding and determination that the petitioner is disqualifiedunder Article 89 of the Constitution from being an elector andunder Article 91 from being elected as a Member of Parliament;
the finding and determination that the petitioner was directlyconcerned and a member of the conspiracy to assassinate thelate Mr. Athulathmudali, procurement of police officers, andmaking up a false scenario in respect of Ragunathan's death;
the recommendation that the petitioner be made subject tocivic disability if the commission's view of the consequencesof (1) above are unacceptable, on the basis of their findingas at (3) above.
We make no order as to costs.
GUNAWARDANA, J. – I agree.WEERASEKERA, J. – I agree.Application allowed – certiorari issued.